Her Majesty the Queen - v. -, 2015 SKPC 104

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 104 Date: July 6, 2015 Information: 46744554 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marcy Faye Primeau Appearing: Elizabeth Addabor For the Crown Ian Goldberg For the Accused DECISION ON VOIR DIRE F.M. DAUNT, J [ 1 ] Marcy Faye Primeau stands charged that she did, on or about the 22nd day of June, 2013:

(1) While her ability to operate a motor vehicle was impaired by alcohol or a drug, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code ;

(2) Having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of a motor vehicle, contrary to section 255(1) and section 253(1) (

b) of the Criminal Code .

[ 2 ] Defence seeks to exclude the Certificate of Analyst for violation of her

section 8 right to be secure against unreasonable search or seizure. EVIDENCE [ 3 ] The Crown called two witnesses on the voir dire : Constable Keith and Constable Robillard. [ 4 ] Constable Keith testified that he has nine years experience with the Prince Albert Police Service. On June 22, 2013, he was in uniform, in an unmarked police vehicle with his partner, Constable Robillard. Their shift began at 7:00 p.m. Shortly after that, they were dispatched to an “MVA” – short for “motor vehicle accident” – in the 1400 block of 13 th Street West.

He cannot recall what Dispatch said exactly, but believes it was an incident involving an “MVA” and that the complainant believed the driver was intoxicated. Constable Keith says he spoke to the complainant, Mr. St. Germain, who told him that a white truck backed out of the driveway at 1431 13 th Street West into his van, which was parked in the street. Mr. St. Germain pointed to the residence from where the truck had left. Constable Keith looked and saw that the truck had returned. [ 5 ] Constable Keith denies entering the residence.

In direct examination, he testified that he knocked on the door and spoke to a female he knew to be Marcy Primeau. She indicated that she was the driver of the vehicle. He noted a strong odour of beverage alcohol and bloodshot, glassy, watery eyes. This was outside the residence. He told her she was under arrest for impaired driving and escorted her to the police vehicle. [ 6 ] Later in direct examination, he clarifies that after Ms. Primeau exited the residence and was speaking to the police, she stated she was the person driving the truck.

When she was outside the residence, he noticed that her eyes were bloodshot, glassy and watery. He informed her she was under arrest for impaired driving. He asked her to come to the police vehicle, “which she willingly did”. [ 7 ] In cross-examination, he again denies entering the residence. He says someone else answered the door. Ms. Primeau came to the door to see what was happening and “she indicated that she was the one driving the truck.” He then admits, “We asked the residents who was driving the vehicle”. He believed both he and Constable Robillard asked the question.

Then he says “I asked a general question of the residents of the house, ‘Who was driving the vehicle?’ She voluntarily came forward and she answered she was.” [ 8 ] The only indicia of impairment Constable Keith noted were alcohol on her breath and glassy eyes. Constable Keith was not asked and did not volunteer what he considered to be his grounds for arrest. Neither was he asked nor did he volunteer whether he believed Ms. Primeau’s ability to operate a motor vehicle was impaired by alcohol. [ 9 ] Constable Keith did not know what time the white truck was alleged to have backed into the van.

He assumed the incident occurred shortly before they were dispatched to it. There is no evidence he asked the complainant for further information about the occurrence before arresting Ms. Primeau. Although it is not properly in evidence on the voir dire , I note that Mr. St. Germain gave a one sentence statement to the effect that “It was a female driving the truck.” He said he didn’t think he needed to give any more information because he already knew she gave a breath sample and blew over before giving his statement. [ 10 ] Once Ms.

Primeau was in the back of the police vehicle, Constable Robillard took over the formal arrest and Charter obligations. [ 11 ] Constable Robillard testified that he has been with the Prince Albert Police Service almost four years now, or about two years on the date in question. He also was in uniform but in an unmarked police vehicle. His shift started at 7:00 p.m. At 7:01 p.m., he and Constable Keith received a report from Dispatch of a motor vehicle accident. Their information was: An intoxicated female driving a white truck hit a parked vehicle, left, came back and was now inside 1431 13 th Street West.

They responded. Constable Robillard did not mention speaking to the complainant before attending the residence. He also does not know what time the incident occurred. [ 12 ] Constable Robillard says they went to the above address and knocked on the door. They were invited inside. Constable Robillard says it was he, not Constable Keith, who asked “Who was the female driving the white truck that hit the van?” Ms. Primeau

said she was. They asked her to come outside the residence, and she complied. He noted bloodshot, glassy eyes and a slight slurring of her speech. Once Ms. Primeau was in the patrol car, he noted a strong odour of beverage alcohol coming from her body. He did not notice any impairment of her motor skills; she walked normally. The time frame from the knock on the door to Ms. Primeau being placed in the police vehicle was two to three minutes. Again, Constable Robillard did not testify that he believed Ms. Primeau’s ability to operate a motor vehicle was impaired by alcohol.

Although asked about indicia of impairment, he was not asked and did not volunteer his grounds either for arrest or for the breath demand, i.e. his grounds to believe Ms. Primeau’s ability to operate a motor vehicle was impaired by alcohol. [ 13 ] At 7:11 p.m., ten minutes after the original dispatch, the accused was already seated in the back of the police vehicle. Constable Robillard advised Ms. Primeau that she was under arrest for impaired driving. From a card in his notebook he read her the breath demand, her right to counsel, and the standard police warning. He read this card into Court. Ms.

Primeau understood her rights and asked to speak to a lawyer. En route to the detachment, before she could exercise her right to counsel, Constable Robillard asked her what she had been drinking. She answered this question. They arrived at the detachment at 7:34 p.m. She called a lawyer at 7:37. She provided her first sample at 7:44 and her second at 8:05 p.m. ISSUES 1. Is the statement of the accused admissible on the voir dire ? 2. Did the police officers believe on reasonable grounds that Ms. Primeau had been operating a motor vehicle within the preceding three hours? 3.

Did the police officers believe on reasonable grounds that Ms. Primeau’s ability to operate a motor vehicle was impaired by alcohol? 4. Should the Certificate of Analyst be excluded under s. 24(2) of the Charter ? ANALYSIS [ 14 ] Although their evidence on this point differed slightly, both officers testified that they were dispatched to an “MVA” involving an intoxicated female driver. Constable Keith said they were dispatched to a specific block, while Constable Robillard says they were dispatched to a specific address. I find that they received the dispatch at 7:01 p.m. They arrived at the scene.

Constable Keith says he spoke to the complainant. Constable Robillard does not mention this in his testimony. Although the complainant allegedly informed him the truck was gone, Constable Keith says he saw it in the driveway of 1431 13 th Street West. Constable Robillard says that Dispatch had informed them the truck had already returned. If Constable Keith spoke to Mr. St. Germain before arresting Ms. Primeau, which I find hard to believe, it must have been a very brief conversation, given that only 10 minutes elapsed between dispatch and formal arrest.

He may have spoken to the complainant after the arrest while Constable Robillard was reading Ms. Primeau her rights. It took longer to arrest the accused and take her to the police station (23 minutes) than the entire investigation prior to her arrest (10 minutes). [ 15 ] I find both officers entered the house. Their evidence differed on this point, but I accept the evidence of Constable Robillard over that of Constable Keith. I have trouble believing that a general question could be asked of a number of occupants while standing outside the house.

I got the impression that Constable Keith sensed there was something wrong with entering a private dwelling without a warrant, and so had an interest in denying entry. Constable Robillard had no such qualms. 1. Admissibility of Statement [ 16 ] One or the other of the officers asked, “Who was involved, who was driving the vehicle that backed into the van?” Ms. Primeau replied that she was driving it. The issue here is the admissibility of Ms. Primeau’s statement that she was driving the truck.

The Crown concedes that it is inadmissible on the trial proper, but submits it is admissible on the voir dire to prove grounds to believe that she was operating a motor vehicle. [ 17 ] Not everything is admissible, even on a voir dire . For example, Ms. Primeau’s response to Constable Robillard’s question while en route to the police station is not admissible to show grounds, as she was already under arrest and the breath demand made. It was asked when the officer had a duty to refrain from eliciting self-incriminating evidence, as she had not yet had a reasonable opportunity to consult counsel.

[18] When there is a motor vehicle accident involving an impaired driver, the police have a duty to complete an accident reportpursuant to

section 253 of The Traffic Safety Act. Under that Act, Ms. Primeau was compelled to answer the question. However,pursuant to section 254(3) of the TSA, that statement is inadmissible in any trial arising out of that accident:

(3) The fact that any report or statement has been made or furnished pursuant to

section 253 is admissible in evidence solely to provecompliance with that section, but the written report or statement is not admissible in evidence for any other purpose in any trial arisingout of a motor vehicle accident. [19] I have reviewed the following line of cases in coming to the conclusion that, in Saskatchewan, such a statement is notadmissible in a voir dire to establish grounds to believe a person has been operating a motor vehicle: R v White, (SCC),[1999] 2 SCR 417 [White], R v Powers, 2006 BCCA 454, R v Scharf, 2013 SKQB 327 [Scharf] and R v By, 2015 SKQB 86. [20] The officers were dispatched to a motor vehicle accident.

They were investigating that accident, as they were required to do,under The Traffic Safety Act. The question asked of the occupants of the house was about the motor vehicle accident. The officers didnot indicate they were investigating an offence under the Criminal Code until they arrested Ms. Primeau -- after she had given thestatement she is compelled to give under provincial legislation. [21] In Scharf, police were investigating a motor vehicle accident. The accused was sitting in the back seat of another vehicle.

Inresponse to a question from the investigating officer, the accused admitted he was driving the vehicle involved in the incident. Theaccused did not testify on the voir dire. Mr. Justice Danyluk states at paragraph 39 that the officer “was doing what he must do pursuantto The Traffic Safety Act, SS 2004, c T-18.1. He is investigating the accident. It is also clear that under that legislation, the accusedmust answer the officer’s questions vis-a-vis the accident.” Later, at paragraph 43, he states: Here, it is clear from the evidence that while Cst.

Roszell said he was dispatched to a motor vehicle accident and was initiallyinvestigating same under provincial law, his evidence also revealed that when he received the 911 call dispatch, a “possible impaireddriver” was involved. So the officer knew, or ought to have known, that he was simultaneously pursuing an accident investigation underprovincial law and a criminal investigation under the Criminal Code. [22] The facts in Scharf are remarkably similar to the case at bar. The only difference is that Mr. Scharf was in a motor vehicle,while Ms. Primeau was in a private residence. [23] In White, Mr.

Justice Iacobucci says at paragraph 80: ...as a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating acrime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for police to tellthe driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver.

Alternatively... police may wish to tell the driver that they intend to secure the details of the accident report from sources other than thedriver, thus terminating the statutory duty to report. [24] Here, the police did neither. They have also charged Ms. Primeau with failing to report an accident under provinciallegislation. In their minds, then, they did not “terminate the statutory duty to report” by deciding to get information about the accidentfrom other witnesses. They expected the driver of the truck to provide information about the accident. White was decided in 1999. Bynow, Mr.

Justice Iacobucci’s advice should be common practice. [25] Looking at all the circumstances, I find that the police were fulfilling their duty under The Traffic Safety Act to investigate thismotor vehicle accident and complete an accident report. Applying Scharf, the accused made this statement in circumstances where itwas likely that she believed she was required by law to make it. I find that the statement is inadmissible on this voir dire.

There beingno grounds to believe she was driving the truck, it follows that there were no grounds to arrest her or to make the breath demand. [26] If I am wrong about that, however, I shall consider whether -- even with the statement -- there were grounds to arrest Ms.Primeau or demand that she give a breath sample.

2. The Preceding Three Hours [ 27 ] Under the Criminal Code , a breath sample may be demanded only if the officer has reasonable grounds to believe that the person has been operating a motor vehicle within the preceding three hours. Here, the officers were dispatched one minute after their shift began. They assumed the accident happened shortly before that, but made no inquiries about the time of the accident. Even if it is safe to assume the complaint came in shortly before the dispatch, it does not follow that the accident occurred shortly before the complaint.

The complainant allegedly told Constable Keith that the truck left after the accident. But when the police arrived, Constable Keith saw the truck in the driveway. If the truck was gone when the complaint was made, but had returned by the time the officers arrived, some time had passed. Constable Keith could have asked the complainant when (or even if) he saw the accused driving the vehicle, but apparently did not think it necessary to elicit more information before approaching the house. I find that, in the absence of further inquiry, the police did not have reasonable grounds to believe that Ms.

Primeau was operating a motor vehicle within the preceding three hours. [ 28 ] If I am wrong about that, I shall consider whether the police believed on reasonable grounds that Ms. Primeau’s ability to operate a motor vehicle was impaired by alcohol. 3. Indicia of Impairment [ 29 ] For a breath demand to be valid, an officer must subjectively believe that the accused has operated a motor vehicle while his ability to do so is impaired by alcohol, and the grounds for that belief must be objectively reasonable. Neither officer testified that they formed the opinion that Ms.

Primeau’s ability to operate a motor vehicle was impaired by alcohol and that she had, within the preceding three hours, operated a motor vehicle. I cannot on the evidence find that they possessed the requisite subjective belief. [ 30 ] But assuming they did believe those things, I heard evidence only of alcohol consumption. That is not enough. There must be evidence that alcohol consumption impaired her ability to drive. Those skills necessary to operate a motor vehicle must be diminished by the consumption of alcohol: her motor skills, her cognitive functions, or her reaction times for example.

The skills necessary to operate a motor vehicle must have been negatively affected by the consumption of alcohol. [ 31 ] Furthermore, the officers did not know when the motor vehicle accident occurred. They didn’t ask. While they noted signs that the accused had been consuming alcohol, they did not know whether she had been consuming alcohol before she had driven or only after the incident. [ 32 ] When asked to list signs of impairment, one officer noticed an odour of beverage alcohol at the house. The other did not notice it until Ms.

Primeau had already been arrested and placed in the back of the police vehicle. Both noticed glassy eyes or bloodshot eyes. One noticed slightly slurred speech. Although they both talked with her, the other officer did not notice any problems with her speech. In any event, these are signs of consumption, not necessarily of impairment. Her balance, her coordination, her ability to communicate and understand appeared unimpaired. [ 33 ] The Crown submits the motor vehicle accident itself was a basis to believe the accused was impaired.

However, neither officer mentioned that they took this into account in forming their grounds for arrest or for the breath demand. Furthermore, it does not follow that the mere fact of a motor vehicle accident leads one to the conclusion that it was the result of an impaired driver. [ 34 ] Police are entitled to rely on information from others in forming their grounds, but they must form their own belief based on that information. They did receive a complaint of an intoxicated or impaired driver. However, that is an opinion or a legal conclusion, not a fact.

It does not relieve them of their obligation to investigate. Here, neither officer made inquiries of the complainant as to the basis for his belief that the accused was intoxicated. They do not know if he saw her drinking, if he saw her stumbling, or if someone else told him she was intoxicated. This is analogous to a complaint of assault. Whether an assault took place is a legal conclusion. The facts underlying that conclusion are that there was an intentional application of force without the consent of the complainant.

Just because a complainant says he’s been assaulted does not give the police grounds to arrest the assailant without ascertaining that there was an intentional application of force without consent. Similarly, a complaint of an impaired driver is a legal conclusion. Facts underlying that conclusion must be ascertained before they can ground an arrest or a breath demand. [ 35 ] In R v S. (A.C.) , 2009 SKPC 39 , Judge Meekma found a lack of reasonable grounds with similar symptoms. She states at paragraph 16:

16 Not only did Cst. Gariepy not testify that she believed the ability of A.C.S. to operate a motor vehicle was impaired by alcohol, her evidence was that she made a breathalyzer demand and not an approved screening device demand due to F-Division policy, because there had been a motor vehicle accident. The indicia of impairment were limited – stumbling over the snowbank (hardly definitive in the circumstances), strong odour of alcohol on his breath, and droopy eyes. 17 The Court must also consider the evidence which does not support impairment.

A.C.S. had no difficulty communicating; he spoke clearly; he was able to provide his identification; he had no difficulty walking to the police car. 18 An officer making a breath demand must subjectively have reasonable and probable grounds, and those grounds must be justifiable from an objective point of view. A reasonable person in the position of the officer must be able to conclude that there were reasonable and probable grounds for believing the person has committed the offence of impaired care or control of a motor vehicle.

The police are not required to establish a prima facie case for conviction. 19 Without further investigation in this case, neither the objective nor subjective grounds have been established. The officer relied on F-Division policy rather than formulating the belief required by s. 254(3) of the Criminal Code . It was not reasonable to do so. 20 As a result, the breathalyzer test was an unreasonable search and seizure, thereby breaching s. 8 of the Charter of Rights and Freedoms .

Furthermore, not being based on reason, the detention was arbitrary, contrary to s. 9. [ 36 ] Failure to make an ASD demand is not fatal to a valid breath demand, as long as the grounds already exist for that breath demand . Here, I find that neither officer had enough information to form his own opinion that Ms. Primeau’s ability to operate a motor vehicle was impaired by alcohol. I find that they did not form such an opinion. Rather, they immediately arrested Ms. Primeau upon learning she was the driver of the truck, based only on an odour of beverage alcohol coming from her body and red eyes.

This is insufficient. [ 37 ] The police were dispatched at 7:01 p.m. Constable Keith says he spoke with the complainant before approaching the house. Upon smelling alcohol, Constable Keith immediately told the accused she was under arrest for impaired driving. By 7:11 p.m., 10 minutes after receiving the dispatch, they already had Ms. Primeau in the back of the police vehicle. In other words, they arrested first and asked questions later. I find that the breath samples were seized without reasonable grounds and thus her

section 8 right was violated. [ 38 ] I shall therefore consider whether the Certificate should be excluded pursuant to s. 24(2) of the Charter . 4. Grant Analysis [ 39 ] Crown does not seek to tender on the trial proper Ms. Primeau’s admission that she was driving the truck, or her response to questions in the police vehicle. I shall therefore consider only whether the results of the Intoxilyzer analysis should be excluded pursuant to section 24(2) of the Charter . [ 40 ] Under a Grant analysis, the Supreme Court says I must weigh these factors: a. The seriousness of the breach, b.

The impact of the breach on the Charter -protected interests of the accused, and c. Society’s interest in the adjudication of the case on its merits. a. The seriousness of the breach

[ 41 ] Although the voir dire turned on a breach of

section 8, there are three breaches here, sections 8, 9 and 10. Both police officers entered a private residence and asked a question designed to incriminate one of the occupants. The question they asked dealt with a motor vehicle accident. They did not reveal that they were investigating a criminal offence. Upon obtaining the incriminating admission, they immediately arrested Ms. Primeau for a Criminal Code offence. They made this arrest without reasonable grounds, thus violating the accused’s

section 9 right against arbitrary detention. Given the lack of investigation, it is questionable whether they had grounds for even an ASD demand, which requires only a reasonable suspicion of alcohol consumption —not impairment—coupled with operating a motor vehicle within the preceding three hours. They made little or no inquiry before depriving a citizen of her liberty. Within 10 minutes of hearing of the complaint, they had Ms. Primeau in their custody. They informed her of her right to counsel.

Upon doing so, they had a duty to refrain from questioning her until she had had a reasonable opportunity to exercise that right. Instead, they asked her how much she had to drink, a question designed to elicit incriminating information. This violated her

section 10(

b) rights. The whole incident reveals a pattern of a lack of respect for her Charter rights. I find the breach is serious. This weighs in favour of exclusion. b. Impact on Charter interests of the accused [ 42 ] The requirement to provide a sample of breath is unique in our criminal justice system; citizens must actively participate in incriminating themselves. If they refuse, even if factually innocent of the suspected crime, they are subject to the same penalty as if they had been found guilty. This is contrary to our

section 7 right against self-incrimination. It can only survive Charter scrutiny because of the requirement that any such demand be made only on reasonable grounds. If the courts routinely admit the results of breath samples obtained without reasonable grounds, that constitutional protection is systemically undermined. It, in effect, rewards bad or lazy police work and encourages random detention of citizens without cause. This weighs in favour of exclusion. c. Society’s interest in adjudication on the merits [ 43 ] The Certificate is conclusive proof that Ms. Primeau’s blood alcohol content was over .08.

This evidence is essential to the Crown’s case on Count 2, but not on Count 1 of the information. Impaired drivers are a ubiquitous threat to public safety, and society has a strong interest in seeing them fully prosecuted. This particular incident involves a minor motor vehicle accident, elevating the seriousness of the offence slightly. On the other hand, there were no injuries and only minor damage, for which the complainant has been compensated.

Nevertheless, this weighs in favour of inclusion, with the caveat that the Crown may still proceed on Count 1 without the evidence. [ 44 ] Balancing the above factors, I find that to include the results of the Intoxilyzer analysis would bring the administration of justice into disrepute, and I exclude them. [ 45 ] Dated this 9 th day of July, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ F.M. Daunt, J